Considering the Application dated 21 April 1995 ("the
Application"), filed by the Prosecutor of the International Criminal Tribunal for the
Former Yugoslavia ("the International Tribunal"),

Noting that the Trial Chamber has been designated by the President
of the International Tribunal pursuant to Rule 9 of the Rules of Procedure and Evidence
("the Rules") of the International Tribunal to determine the Application,

Having read and considered the Application and the Schedule
("the Schedule") annexed thereto,

Having granted leave to the representative of the Government of the
Republic of Bosnia and Herzegovina to appear as amicus curiae, and having read and
considered the submission of such representative,

Having heard both the Prosecutor and the representative of the
Government of the Republic of Bosnia and Herzegovina at a public sitting held at The Hague
on 15 May 1995,

HEREBY ISSUES ITS DECISION.

I - The Application

1. This is an application by Richard J. Goldstone, Prosecutor of the
International Tribunal, made pursuant to Article 9(2) of the Statute of the International
Tribunal in accordance with Rule 9 (iii) of the Rules. The Application is for the issue of
a formal request from this Trial Chamber to the Government of the Republic of Bosnia and
Herzegovina for the deferral to the competence of the International Tribunal of all
investigations and criminal proceedings involving Radovan Karadzic, Ratko Mladic and Mico
Stanisic being conducted by the Government of the Republic of Bosnia and Herzegovina in
the territory of the former Yugoslavia since 1991, pursuant to Rule 10 of the Rules.

2. The Prosecutor states, and the Government of the Republic of Bosnia
and Herzegovina has confirmed in both its written and oral submissions, that it is
currently conducting investigations into war crimes and violations of the criminal laws of
the Republic of Bosnia and Herzegovina. Criminal proceedings have been instituted by the
Government of the Republic of Bosnia and Herzegovina against Radovan Karadzic, the Bosnian
Serb leader; Ratko Mladic, the military commander of the Bosnian Serb armed forces; and
Mico Stanisic, in charge of Bosnian Serb internal affairs, in respect of alleged war
crimes and violations of Articles 141, 142 and 151 of the Criminal Law of the Socialist
Federal Republic of Yugoslavia as recognised by the Republic of Bosnia and Herzegovina,
which include genocide, war crimes against the civilian population, and destruction of
cultural and historic monuments.

3. Various documents cited in the Prosecutors Application and
mentioned at the hearing (documents dated 12 June 1992, 17 August 1992, 26 December 1992
and 20 September 1993) indicate that, one, the Higher Public Prosecutors Office in
Sarajevo submitted a request to the Higher Court in Sarajevo for the opening of an
investigation in respect of these suspects, and secondly, the District Military
Prosecutors Office also lodged a request for an investigation involving the same
individuals to a District Military Court relating to alleged offences which are within the
jurisdiction of the Tribunal. The Prosecutor furthermore stated that contacts between the
Ministry of Justice of the Republic of Bosnia and Herzegovina and the Prosecutor of the
International Tribunal have enabled the investigative steps regarding the suspects to be
outlined. It was confirmed at the hearing that national arrest warrants have been issued
by the Government of the Republic of Bosnia and Herzegovina.

4. The Prosecutor states in the Schedule, and it was confirmed at the
hearing, that he is conducting investigations into a wide range of violations which are
within the jurisdiction of the Tribunal, in particular genocide, crimes against civilians,
and the destruction of cultural and historical monuments. It was also confirmed at the
hearing that those violations are identical to those in respect of which investigations
are being carried out on Bosnian territory. A significant focus of these investigations
relates to persons in positions of authority who are or were responsible for serious
violations of international humanitarian law in the former Yugoslavia. The
Prosecutors view is that the matter of the individual criminal responsibility of the
three persons in political, military or police leadership positions must be examined.

5. The Prosecutor has also initiated an investigation into the criminal
responsibility of Radovan Karadzic, Ratko Mladic and Milo Stanisic arising out of
indictments already issued by the International Tribunal against various named individuals
for genocide, murder, rape, mistreatment of civilians, torture, and other offences
allegedly committed in the running of detention camps.

6. Finally, the Prosecutor mentioned a significant investigation
concerning the prolonged siege of Sarajevo (including attacks, considered unlawful,
against civilian members of humanitarian organizations, United Nations peace-keeping
forces and humanitarian-aid convoys).

7. The Prosecutors investigations place the main focus on the
positions of authority held by the three suspects who are allegedly guilty of serious
violations of international humanitarian law in the territory of the former Yugoslavia. In
the Schedule the involvement of Radovan Karadzic, Ratko Mladic and Mico Stanisic is
described, as was confirmed by the representative of the Government of the Republic of
Bosnia and Herzegovina at the hearing, as follows:

"Radovan Karadzic is one of the main architects of the SSerbian
Democratic PartyC political programme, involving extreme nationalist and ethnic policies
and objectives. Radovan Karadzic became the first president of the Bosnian Serb
administration in Pale. The constitution of this administration provides that the
president commands its armed forces. Radovan Karadzic exercises his power and control from
Pale, a town near Sarajevo. Radovan Karadzic has acted as and been dealt with
internationally as the president of the Bosnian Serb administration in Pale. In that
capacity, Radovan Karadzic has, inter alia, participated in international
negotiations and has personally made agreements on such matters as cease-fires and
humanitarian relief that have been implemented.

Ratko Mladic . . . is a career military officer . . . In the summer of
1991, he was appointed to command the 9th Corps of the Yugoslav Peoples Army (JNA)
in Knin in the Republic of Croatia. Subsequently, he assumed command of the forces of the
Second Military District of the JNA which effectively became the Bosnian Serb army. In
that capacity he has negotiated, inter alia, cease-fire and prisoner exchange
agreements that have been implemented.

[. . .]

Mico Stanisic . . . was the first minister of internal affairs of the
Bosnian Serb administration in Pale. In that capacity, he was, inter alia,
responsible for the regular and special police forces at the regional and local level in
the territory under Bosnian Serb control. It is alleged that those forces were actively
involved in organising a campaign of terror against the non-Serbian population of Bosnia
and Herzegovina."

8. The legal basis for these investigations by the Prosecutor is
Article 7 of the Statute of the International Tribunal concerning individual criminal
responsibility, a concept discussed in paragraphs 55 and 56 of the Report of the
Secretary-General of the United Nations dated 3 May 1993.

9. Notwithstanding that national courts are vested with concurrent
jurisdiction by Article 9 of the Statute of the International Tribunal, the Prosecutor,
relying on Rule 9, is proposing that a formal request be issued to the Republic of Bosnia
and Herzegovina, pursuant to Rule 10 of the Rules, to defer its investigations and
criminal proceedings in respect of Radovan Karadzic, Ratko Mladic and Mico Stanisic, to
the competence of the International Tribunal, and to provide the Prosecutor with all
information concerning its investigations.

10. The Prosecutor states that the continuation by the Government of
the Republic of Bosnia and Herzegovina of investigations similar to those being conducted
by the Prosecutor could have significant implications for those investigations, as set out
in the Schedule.

11. In particular, the Prosecutor refers to a number of matters which
may have implications for his investigations or any subsequent prosecutions. Matters
involving significant factual questions include:

(i) witnesses may be exposed to greater risks as their identities and
evidence will already have been made public;

(ii) witnesses may be unwilling or unable to testify for a second time;

(iii) critical evidence stored in war zones in the Republic of Bosnia
and Herzegovina could be damaged or lost before use by the International Tribunal;

(iv) witnesses may become confused as to the scope and authority of the
two investigations;

(v) the International Tribunal is not a party to the conflict in the
Republic of Bosnia and Herzegovina and has a better ability to obtain evidence worldwide;

(vi) deferral of these investigations may encourage Governments and
other sources to furnish additional information to the International Tribunal that has
thus far not been provided.

Those involving significant legal issues include:

(vii) issues relating to the principle of non-bis-in-idem;

(viii) there is the potential inadvertently to create inconsistent
sworn evidence;

(ix) issues relating to possible trials in absentia which may be
held in the Republic of Bosnia and Herzegovina;

(x) it would be undesirable and not in the interest of justice if the
decisions of a national court and of the International Tribunal were to conflict.

12. The Government of the Republic of Bosnia and Herzegovina, appearing
as amicus curiae, has indicated in both its written and oral submissions that it
does not oppose the issue of a formal request by the Trial Chamber for the deferral of all
investigations and criminal proceedings in respect of Radovan Karadzic, Ratko Mladic and
Mico Stanisic.

II - Discussion

13. Article 8 of the Statute of the International Tribunal extends its
territorial jurisdiction to the territory of the former Socialist Republic of Yugoslavia,
including its land surface, airspace and territorial waters, beginning on 1 January 1991.
Article 9 of the Statute provides as follows:

1. The International Tribunal and national courts shall have concurrent
jurisdiction to prosecute persons for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1 January 1991.

2. The International Tribunal shall have primacy over national courts.
At any stage of the procedure, the International Tribunal may formally request national
courts to defer to the competence of the International Tribunal in accordance with the
present Statute and the Rules of Procedure and Evidence of the International
Tribunal."

However, the right to primacy can only be exercised on a formal request
to the national court to defer to the competence of the International Tribunal. The Rules
provide the modus for the exercise of the right.

14. Rule 9 of the Rules provides as follows:

Where it appears to the Prosecutor that in any such investigations or
criminal proceedings instituted in the courts of any State:

(i) . . .

(ii) . . .

(iii) what is in issue is closely related to, or otherwise involves,
significant factual or legal questions which may have implications for investigations or
prosecutions before the Tribunal,

the Prosecutor may propose to the Trial Chamber designated by the
President that a formal request be made that such court defer to the competence of the
Tribunal.

15. To comply with the enabling provisions for grant of the
Application, the Prosecutor must therefore establish that:

(a) national investigations or criminal proceedings have been
instigated by the Republic of Bosnia and Herzegovina in respect of suspects including
Radovan Karadzic, Ratko Mladic and Mico Stanisic;

(b) investigations are currently being conducted by the Prosecutor into
crimes within the jurisdiction of the International Tribunal, including the individual
criminal responsibilities of persons in political, military and police leadership
positions, including Radovan Karadzic, Ratko Mladic and Mico Stanisic;

(c) what is in issue in the national investigations or criminal
proceedings is closely related to, or otherwise involves, significant factual or legal
questions which may have implications for the investigations of the Prosecutor and any
subsequent proceedings before the International Tribunal.

16. The Trial Chamber notes that Radovan Karadzic, Ratko Mladic and
Mico Stanisic are the subject of investigations instituted by the Government of the
Republic of Bosnia and Herzegovina into the same alleged offences being investigated by
the Prosecutor and that the investigations and any criminal proceedings that may be
instituted by the national courts of the Republic of Bosnia and Herzegovina in respect of
the matters listed in paragraphs 2 and 3 hereof, relate to the same issues. The Government
of the Republic of Bosnia and Herzegovina does not contest these points.

17. The Trial Chamber further notes that the Prosecutor is
investigating a wide range of allegations covering offences within the competence of the
Tribunal including genocide, offences against civilians and destruction of cultural and
historical monuments and that he is examining the individual criminal responsibilities of
persons in political, military and police leadership positions, including Radovan
Karadzic, Ratko Mladic and Mico Stanisic. It does indeed appear from the Application that
the three named persons hold such positions of authority.

18. A reading of the Schedule clearly supports the claim that the
investigations and proceedings instituted by the Government of the Republic of Bosnia and
Herzegovina in respect of Radovan Karadzic, Ratko Mladic and Mico Stanisic involve
significant factual or legal questions which have an impact on the investigations
instituted by the Prosecutor in respect of serious violations of international
humanitarian law in the territory of the former Yugoslavia. The Trial Chamber refers in
particular to paragraphs 3.1 and 3.2 of the Schedule.

19. These issues are not disputed by the Government of the Republic of
Bosnia and Herzegovina.

20. Consequently, the Trial Chamber is satisfied that the Prosecutor
has shown that the investigations being carried out by the Prosecutor and by the
Government of the Republic of Bosnia and Herzegovina in respect of Radovan Karadzic, Ratko
Mladic and Mico Stanisic involve the same alleged crimes, in particular, genocide,
offences against civilians and destruction of cultural and historical monuments and that
the issues in any criminal proceedings that may be instituted by the Government of the
Republic of Bosnia and Herzegovina in respect of such crimes would involve significant
factual or legal questions which may have implications for investigation or prosecutions
before the International Tribunal.

21. The Government of the Republic of Bosnia and Herzegovina has also
made clear its intent to pursue its investigations of Radovan Karadzic, Ratko Mladic and
Mico Stanisic and to proceed to trial in the absence of a formal request for deferral.

22. Proceedings in respect of persons in positions of authority before
the International Tribunal derive expressly from Article 7 of the Statute of the
International Tribunal and more particularly, from paragraphs 1, 2 and 3 thereof.

23. The punishment for the crimes allegedly committed by such
individuals is also based on the general principles of international humanitarian law, and
derives in particular from the precedents laid down by Nuremberg and Tokyo; furthermore,
the principle of individual criminal responsibility of persons in positions of authority
has been reaffirmed in a number of decisions taken by national courts, and adopted in
various national and international legal instruments.

24. It follows from the above principle that the official capacity of
an individual even de facto in a position of authority - whether as military commander,
leader, or as one in government - does not exempt him from criminal responsibility and
would tend to aggravate it; and, moreover, it is that position of authority which would
have enabled the suspects to plan, instigate, or order the crimes in respect of which the
above-mentioned investigations have been conducted, or given them the means to prevent the
said crimes, or at the least to punish their perpetrators.

25. Accordingly, more so than those just carrying out orders, they
would thus undermine international public order; and therefore the International Tribunal
established by the international community to restore that order is particularly
well-founded to invoke its primacy over national courts, as acknowledged in Article 9 (2)
of the Statute of the International Tribunal.

26. The Trial Chamber has already concluded in paragraph 20 that the
Prosecutor has established the grounds laid down in Rule 9(iii). In addition, the Trial
Chamber notes that the International Tribunal is the appropriate forum to try the persons
responsible for the kinds of crimes covered by the investigations currently being
conducted by the Government of the Republic of Bosnia and Herzegovina in respect of
Radovan Karadzic, Ratko Mladic and Mico Stanisic and to examine the individual criminal
responsibilities of persons in political, military and police leadership positions.
Indeed, it could be stated that it is one of the fundamental purposes of the International
Tribunal to exercise its primacy in such cases.

27. The Trial Chamber is satisfied that deferral of the investigations
and proceedings which are the subject of this Application is appropriate and, pursuant to
Article 9 of the Statute and Rules 9 and 10, issues a formal request for deferral to the
Government of the Republic of Bosnia and Herzegovina as hereinafter set forth.

III - Decision

THE TRIAL CHAMBER

BASED ON THE FOREGOING DETERMINES AS FOLLOWS:

considering all the matters before it and addressed in the public
hearing, and

considering the requirements contained in Rule 9(iii) of the Rules,

the Trial Chamber consisting of Judge Karibi-Whyte, as Presiding Judge,
Judge Odio Benito and Judge Jorda, being seized of the Application made by the
Prosecutor,

HEREBY GRANTS the said Application,

FORMALLY REQUESTS the Government of the Republic of Bosnia and
Herzegovina, in respect of serious violations of international humanitarian law over which
the International Tribunal has jurisdiction, as specified in Articles 2 to 5 of the
Statute of the International Tribunal, that the courts of the Republic of Bosnia and
Herzegovina defer to the competence of the International Tribunal in regard to their
investigations and criminal proceedings involving Radovan Karadzic, Ratko Mladic and Mico
Stanisic,

INVITES the Government of the Republic of Bosnia and Herzegovina to
take all necessary steps, both legislative and administrative, to comply with this Formal
Request and to notify the Registrar of the International Tribunal of the steps taken to
comply with this Formal Request, and

REQUESTS that the Government of the Republic of Bosnia and
Herzegovina forward to the International Tribunal the results of its investigations and a
copy of the records and judgement, if any, of its national courts.

The Trial Chamber requests the Registrar of the International Tribunal
to notify the Government of the Republic of Bosnia and Herzegovina of this its Decision
and Formal Request.